USDA and Monsanto Appeal Decision To Pull GMO Crop

The fate of genetically engineered (“GE”) sugarbeet seedlings (a.k.a. “stecklings”) is now before the Ninth Circuit Court of Appeals. The historic November 30, 2010 ruling, in which District Court Judge Jeffrey White directed the removal of Monsanto’s Roundup Ready seedlings that were planted after the United Stated Department of Agriculture’s (“USDA”) Animal and Plant Health Inspection Services (“APHIS”) issued permits, will be considered by the Appeals Court on February 28, 2011. Earlier in September, APHIS issued permits in an attempt to circumvent an August 13 ruling in which Judge White banned the planting of Monsanto’s Roundup Ready GE sugar beets until APHIS conducts an Environmental Impact Statement (“EIS”).

The legal battle over GE sugar beets began in 2005 when, after deregulating the crop, USDA/APHIS was sued by a number of consumer and environmental advocates and farmers who argued that the agency’s action violated federal law by permitting crop planting without conducting an EIS. After several years of litigation, the District Court issued an order directing USDA to conduct an EIS and vacated the agency’s deregulation determination. No more GE sugarbeets were to be planted until the EIS was complete. Just several weeks after the Court ordered USDA to prepare an EIS, the agency granted permits for the planting of GE seedlings, forcing plaintiffs to seek redress in the form of an injunction before Judge White once again.

The Court‘s Nov. 30 ruling disregarded defendants’ arguments of hardship and keenly pointed out that defendants “created this problem.” Furthermore, the legality of defendants’ conduct (or rather, the lack thereof), i.e., issuing the permits and planting seedlings on 256 acres, “does not even appear to be a close question. It appears clear that [USDA] and [Monsanto and other companies] were merely seeking to avoid the impact of the Court’s prior order” in which the Court found that USDA violated federal law when the agency deregulated the crops and vacated the agency’s deregulation determination.

The removal of GE sugarbeet seedlings, which was supposed to start on December 6, however, has been put on ice as Monsanto immediately filed an appeal, later joined by USDA, and the Appeals Court granted a temporary stay. Initially, the Appeals Court review was scheduled for December 23, 2010, but the review was pushed back to late February 2011.

In response to the appeal, counsel for Earthjustice, a lead plaintiff attorney, Paul Achitoff stated:

USDA thumbed its nose at the judicial system and the public by allowing this crop to be grown without any environmental review. Herbicide resistant crops just like this have been shown to result in more toxic chemicals in our soil and water. USDA has shown no regard for the environmental laws, and we’re pleased that Judge White ordered the appropriate response.

Supporters on both sides of the issue are eager for a decision from the Ninth Circuit Court of Appeals, which would likely be the final determination on whether the seedlings can be removed.